R v Taylor; R v Teekens - [2022] SASCA 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v TAYLOR; R v TEEKENS
[2022] SASCA 79
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice David)
11 August 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - MANUFACTURING, PRODUCING OR CULTIVATING - CANNABIS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
A police raid revealed hydroponically grown cannabis at several residential properties. Following proceedings in the Magistrates Court, five accused were sentenced.
The first respondent, Ms Nicole Taylor, pleaded guilty to Cultivating a Controlled Plant for Sale and was discharged without conviction by the Magistrate upon her entering into a bond to be of good behaviour. The second respondent, Mr Peter Teekens, pleaded guilty to Cultivating a Controlled Plant for Sale, Trafficking in a Commercial Quantity of a Controlled Drug and Interfering with an Electrical Supply. He was sentenced to a period of one year, 10 months and two weeks’ imprisonment, suspended upon his entering into a bond to be of good behaviour.
The Director of Public Prosecutions seeks permission to appeal the sentences of the two respondents, on the grounds that they are manifestly inadequate.
Held, per the Court, granting permission to appeal and allowing the appeal:
1.These are “rare and exceptional” cases for the purposes of Everett v The Queen (1994) 181 CLR 295; the applicant should be granted permission to appeal to enable this Court to establish and maintain adequate standards of punishment for crime.
2.The Magistrate erred in discharging the first respondent without conviction, given the serious nature of her offending and the requirement for general deterrence.
3.The Magistrate erred in making the sentences for the Cultivation and Trafficking charges of the second respondent totally concurrent.
4.The sentences imposed by the Magistrate are to be set aside and the respondents resentenced.

Controlled Substances Act 1984 (SA); Electricity Act 1996 (SA); Sentencing Act 2017 (SA), referred to.
Dinsdale v The Queen (2000) 202 CLR 321; Hili v The Queen (2010) 242 CLR 520; Police v Sherratt [2015] SASC 43; R v Buttigieg (2020) 352 FLR 170; R v Harkin (2011) 109 SASR 334; R v Kong [2013] SASCFC 15; R v Marien [2011] SASCFC 116; R v McGaffin (2010) 206 A Crim R 188 ; R v McIntosh [2017] SASCFC 87; R v Nemer (2003) 87 SASR 168 ; R v Peet [2018] SASCFC 91 ; R v Yousef (2005) 155 A Crim R 134, considered.

R v TAYLOR; R v TEEKENS
[2022] SASCA 79
Court of Appeal – Criminal: Lovell, Doyle and David JJA

THE COURT: In June 2020, police raided four residential properties and located hydroponically grown cannabis crops at the various addresses. Originally eight people were charged over the crops, with all charges included on the one Information. The two respondents were among the eight charged.
On 14 January 2022, the Magistrate sentenced five of the accused, including the two respondents. For reasons that remain unclear, the prosecution, despite the charges and accused all appearing on one Information, did not allege any link between the accused nor the cannabis found at the various residential premises. The prosecution seek permission to appeal the sentences of the two respondents, on the ground that the sentences imposed are manifestly inadequate. Permission to appeal against the sentences imposed on the other three accused has not been sought.
Background
First respondent (Taylor)
On 18 June 2020, police attended at the home address of Ms Nicole Taylor (“Taylor”) and Mr Nicholas Teekens in Tanunda. Police searched a shed where they found three purpose-built grow rooms and a fourth room containing a water filtration system. Police located 18 cannabis plants inside the grow rooms in addition to 50 high wattage light globes, 45 light shades, 54 ballast boxes, seven electrical timers and a carbon filter.
The respondent Taylor pleaded guilty to one count of Cultivating a Controlled Plant (cannabis) for Sale.[1] The prosecution accepted that Taylor permitted the premises to be used for the purposes of cultivating cannabis, but was not otherwise actively involved in the cultivation. Taylor’s offending occurred in the context of the offending of her then partner, Mr Nicholas Teekens. Mr Nicholas Teekens pleaded guilty to one count of Cultivating a Controlled Plant (cannabis) for Sale and one count of Interfering with an Electrical Supply.[2] The maximum penalty for Cultivating a Controlled Plant for Sale is a fine of $50,000 or imprisonment for 15 years, or both. The Magistrate discharged Taylor without conviction upon her entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years.
[1] Contrary to s 33B(3) of the Controlled Substances Act 1984.
[2] The South Australian Director of Public Prosecutions has not appealed his sentence.
The applicant complains that the sentence is manifestly inadequate.
Second respondent (Teekens)
On 24 June 2020, police attended an address at Cockatoo Valley, being the residential address of Mr Peter Teekens (“Teekens”). The police searched a shed on the premises and located five purpose-built grow rooms. They seized nine cannabis plants and 2.33 kilograms of loose cannabis plant material located on a drying rack. In addition, the police seized 55 high wattage light globes, 51 light shades, 50 ballast boxes, 16 electrical timers and one carbon filter. The electricity meter at the address was also being bypassed.
The respondent Teekens pleaded guilty to one count each of Cultivating a Controlled Plant for Sale (“Cultivation Charge”), Trafficking in a Commercial Quantity of a Controlled Drug, (“Trafficking Charge”) and Interfering with an Electricity Supply.[3]
[3] Contrary to ss 33B(3) and 32(2) of the Controlled Substances Act 1984 and s 84(1)(b) of the Electricity Act 1996 respectively.
Teekens was entitled to a reduction of up to 25 per cent for his early pleas of guilty.
For the Cultivation Charge, the Magistrate imposed a sentence of two years and three months, reduced to one year, eight months and one week to allow for his plea. For the Trafficking Charge, the Magistrate imposed a sentence of two years and six months’ imprisonment, reduced to one year, 10 months and two weeks to allow for his plea. The sentence was to be served concurrently with the sentence imposed on the Cultivation Charge.
Thus, the final sentence was one year, 10 months and two weeks. The Magistrate fixed a non-parole period of 11 months. Having found good reason existed, the Magistrate suspended the term of imprisonment upon Teekens entering into a bond, in the sum of $1,000, to be of good behaviour for a period of three years. On the charge of diverting electricity, the Magistrate imposed a fine of $3,000.
The applicant complains that the sentence imposed is manifestly inadequate.
Legal principles
It is well established that leave should only be granted with respect to Crown appeals against sentence in cases that are “rare and exceptional”.[4] The “rare and exceptional” test should be rigorously applied.[5] The prosecution will be granted permission to appeal if it is necessary to enable the court to establish and maintain adequate standards of punishment for crime; to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected; or if a sentence is so far below the appropriate range of sentences that the sentence reflects an error of principle or would “shock the public conscience”.[6] Both error and strong reasons of public policy are required to justify appellate intervention in a sentence said to be manifestly inadequate. The Crown must persuade the court that such strong reasons of public policy exist which demand permission to appeal be granted despite the public interest in not twice vexing the respondent.[7]
[4]     Everett v The Queen (1994) 181 CLR 295 at 299.
[5]     R v Buttigieg (2020) 352 FLR 170 at [39].
[6]     R v Nemer (2003) 87 SASR 168 at [24]; R v Harkin (2011) 109 SASR 334 at [19].
[7]     R v Buttigieg (2020) 352 FLR 170 at [39]; R v McIntosh [2017] SASCFC 87 at [16].
On a prosecution appeal, the court must first deal with the question of permission to appeal before determining whether the appeal should be allowed. The question of permission to appeal involves issues ranging beyond those involved in the merits of the appeal. This Court has determined on numerous occasions that the common law principle of double jeopardy continues to apply in respect of an application by the South Australian Director of Public Prosecutions for permission to appeal against sentence.[8] This is particularly so where the original sentence has been suspended as the offender has been in the community and may have taken significant steps towards rehabilitation. To suddenly reverse the decision and impose a custodial sentence may produce an injustice.[9] A court can exercise its discretion and refuse permission to prevent a person being twice vexed by the repeated exercise of the coercive power of the State. However, the principle of double jeopardy has no application once the court decides to grant permission to appeal, allow the appeal and resentence.
[8] R v Kong (2013) 115 SASR 425 at [36]; R v Harkin (2011) 109 SASR 334 at [106]; R v Marien [2011] SASCFC 116 at [18].
[9] R v Kong (2013) 115 SASR 425 at [102].
As with any appeal against sentence, error must be identified before an appellate court may interfere. A specific error may be identified if a sentencing judge has acted upon a wrong principle, mistaken the facts, failed to take into account a material consideration, or allowed irrelevant matters to impact the decision. Alternatively, a specific error may not be identifiable, yet the sentence imposed may be so manifestly excessive or inadequate that the only inference to be drawn is that there was a failure to properly exercise the sentencing discretion.[10]
[10] Dinsdale v The Queen (2000) 202 CLR 321 at [58]–[59] (per Kirby J).
Manifest inadequacy is a conclusion.[11] In determining if a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it is plainly inadequate.[12] A sentence will not be disturbed on appeal merely because the appellate court would itself have imposed a different sentence.[13]
[11] Dinsdale v The Queen (2000) 202 CLR 321 at [6].
[12] R v Peet [2018] SASCFC 91 at [6].
[13] Hili v The Queen (2010) 242 CLR 520 at 538–539; R v Buttigieg (2020) 352 FLR 170.
First respondent
Taylor has no prior convictions. The prosecution accepted that she had no direct involvement in the cultivation but acquiesced in the premises being used, by her partner, to grow cannabis. The photographs tendered at the sentencing hearing establish the sophisticated nature of the cultivation.
Taylor has three children. References tendered established her previous good character. At the time of sentencing, Taylor was on maternity leave from her council employment; there is some prospect that a conviction would lead to termination of her employment. The Magistrate sentenced Taylor on the basis that she was contrite and, but for the influence of her partner, would not have participated in the venture. Utilising s 97 of the Sentencing Act 2017 (“the Act”), the Magistrate found good reason existed to not record a conviction.
The applicant submitted that, while accepting that Taylor played a passive role in the offending, her offending was still serious. Indeed, so serious that it was not open to the Magistrate to exercise the discretion under s 97 of the Act and not record a conviction. The respondent’s culpability had to be assessed against the commercial nature of the offending. Permitting premises to grow cannabis is a common offence and it is often the case that the person permitting the use of the premises plays little or no role in the cultivation. However, permitting the premises to be used is a necessary step in the cultivation. In that sense, the applicant submitted, general deterrence plays an important role in sentencing. The applicant contended that the Magistrate placed excessive weight on the risk a conviction may pose to Taylor’s employment.
The relevant section of the Act states:
97—Discharge of other defendants on entering into good behaviour bond
(1)If a court finds a person guilty of an offence, the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction, and without imposing any other penalty, on condition that the defendant enter into a bond—
(a)to be of good behaviour; and
(b)comply with the other conditions (if any) included in the bond; and
(c)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
Whether to record a conviction involves a consideration of the public interest in the right to know about a person’s offending, the individual’s personal circumstances and the effect the recording of a conviction will have upon that individual.
The recording of a conviction serves many purposes. It is the formal record of the adjudication of the offender’s guilt and is a public declaration that the person engaged in the charged criminal conduct; it forms part of the community’s denunciation and censure of the conduct. Also, the prospect that a conviction will be recorded forms part of the deterrent effect of a sentence. In R vYousef,[14] Sulan and Layton JJ observed:
… A conviction does not merely record a finding that the person committed the crime charged: it condemns him for that crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to those who may be inclined to offend in a similar way.
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.
(citations omitted)
[14] R v Yousef (2005) 155 A Crim R 134 at [60]–[61].
Prospective employers, companies, and government departments may have a legitimate interest in knowing the truth about the character of persons who deal with them.[15] Where a serious offence has been committed, there is a greater need for the public to know of the offending.[16]
[15] R v McGaffin (2010) 206 A Crim R 188 (per Gray J).
[16] Police v Sherratt [2015] SASC 43 at [19] (per Sulan J).
Taylor’s offending was serious. As mentioned, the use of hydroponic equipment in the manner shown in the photographs establishes that this cultivation could be described as a sophisticated commercial operation. While Taylor’s role was confined to permitting the use of her premises for this cultivation, it is relevant that her conduct enabled a cultivation of this nature to occur.
I consider that it was an error for the Magistrate not to have recorded a conviction. The serious nature of the respondent’s offending required the public declaration of her wrongdoing which a conviction represents. Giving effect to the requirement for general deterrence also required a conviction. We accept the applicant’s submissions that the discretion to not record a conviction was not available on the facts of this case.
This is a rare and exceptional case where the applicant should be granted permission to appeal to enable this Court to establish and maintain adequate standards of punishment for crime. We consider it appropriate to grant permission to appeal and we would also allow the appeal. The sentence is to be set aside, and the respondent resentenced.
Resentence
As discussed, the offending was serious. While her role was limited, it related to an enterprise that was sophisticated and commercial. While the respondent’s personal circumstances evoke sympathy, this must be weighed against the serious nature of her offending. We accept the applicant’s submission that a sentence of imprisonment is warranted. Had it not been for the respondent’s plea of guilty, we would have imposed a sentence of six months’ imprisonment. To allow for the plea, we would reduce the sentence of imprisonment to five months and one week. The applicant conceded that good reason exists to suspend the sentence. We find good reason exists to suspend the sentence. We will suspend the sentence on the respondent entering into a bond, in the sum of $500, to be of good behaviour for a period of 12 months.
Second respondent
The applicant submitted that the Magistrate made two errors. First, that by making the sentences for the Cultivation Charge and the Trafficking Charge totally concurrent, the final sentence was manifestly inadequate. Secondly, in finding that good reason existed to suspend the sentence.
Dealing with the first issue, in White (a pseudonym) v The Queen,[17] this Court recently discussed the sentencing principles involved in deciding whether, for multiple offences, sentences should be made concurrent, partially concurrent or cumulative. The guiding principle is that the final sentence should be one that is proportionate to both the objective criminality and maximum penalty, and the subjective, mitigating circumstances of the offender in the light of all relevant circumstances.
[17] [2022] SASCA 78.
Although the Cultivation and Trafficking offending were separate incursions into crime, in context, they can be seen as part of a single course of conduct. However, even though the offending can be seen a single course of conduct it was not open to the Magistrate to make the sentences totally concurrent; he was in error in doing so. Although no complaint was made about the length of the individual sentences, the final sentence imposed by the Magistrate is manifestly inadequate.
This is a rare and exceptional case where the applicant should be granted permission to appeal to enable this Court to establish and maintain adequate standards of punishment for these crimes. We grant permission to appeal and allow the appeal. The sentence is to be set aside, and the respondent resentenced.
It is unnecessary for us to consider whether the Magistrate erred in finding that good reason existed to suspend the sentence.
Resentence
The police located nine cannabis plants growing in a sophisticated hydroponic set up as described earlier. The value of the crop once harvested was between $24,000-$48,000. The trafficking charge related to the 2.33 kilograms of dry cannabis which had a street value of between $13,000-$15,000. The offending was clearly serious.
At the time of sentencing, the respondent was 59 years of age, married with two children and five grandchildren. He had no prior convictions. For nearly 25 years the respondent was engaged as a qualified nurse educator and university lecturer, then pursued a Masters degree in Clinical Science. References tendered before the Magistrate attest to the high regard in which the respondent is held. The respondent left his full-time employment in 2012 due to ill health and when he eventually recovered, was retrenched in 2020 through a combination of reduced work performance and his job being made redundant. As a result of the proceedings before the Magistrate, the respondent’s accreditation as a healthcare professional has been withdrawn. Teekens has subsequently obtained work in the trucking industry as an interstate truck driver. Letters of support tendered before the Magistrate show that he is a highly valued employee. Despite the Magistrates Court proceedings, his employer kept his employment open. The respondent currently still works as an interstate truck driver. Due, in part at least, to the proceedings before the Magistrate, the respondent’s marriage suffered and his wife is in ill health.

The Magistrate accepted that the respondent began using cannabis to assist with pain and sleep management after he found the use of conventional medication ineffective. The respondent accepted that in 2018 he grew a crop for personal use, however, grew another crop, in part for personal use, but also to defray costs. The nature of the enterprise clearly shows an intent to make a profit over and above a simple defraying of costs. He is to be resentenced against that background.
On resentence, we impose the same penalties as imposed by the Magistrate. For the Cultivation Charge, we impose a sentence of two years and three months’ imprisonment. For the Trafficking Charge, we impose a sentence of two years and six months’ imprisonment. Given that the conduct is interrelated, we consider partial concurrency to be appropriate. We impose one sentence pursuant to s 26 of the Act of four years’ imprisonment. To allow for the respondent’s plea of guilty, we reduce the sentence to three years’ imprisonment. We fix a non-parole period of 20 months.
The Magistrate suspended the term of imprisonment. On resentence, we must have regard to the fact that the respondent has already complied with the terms of the bond for approximately six months. His behaviour in complying with the terms of the suspended sentence is consistent with the Magistrate’s assessment of the respondent as contrite, unlikely to reoffend and as having good prospects of rehabilitation.
The offending is, as discussed, serious. However, in all of the circumstances we are satisfied that good reason exists to suspend the sentence on the condition that the respondent enter into a bond, in the sum of $1,000, to be of good behaviour for a period of two years.
Orders
First respondent
Permission to appeal is granted and the appeal allowed. The sentence imposed by the Magistrate is set aside. The first respondent is sentenced to imprisonment for five months and one week, suspended on the respondent entering into a bond, in the sum of $500, to be of good behaviour for a period of 12 months.
Second respondent
Permission to appeal is granted and the appeal allowed. The sentence imposed by the Magistrate in respect of the Cultivation and Trafficking Charges is set aside. The second respondent is sentenced to imprisonment for three years with a non-parole period of 20 months. The sentence of imprisonment is to be suspended on the second respondent entering into a bond, in the sum of $1,000, to be of good behaviour for a period of two years.